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Marriage as a Violation of Equality

University Press Scholarship Online

Oxford Scholarship Online

Against Marriage: An Egalitarian Defense of the


Marriage-Free State
Clare Chambers

Print publication date: 2017


Print ISBN-13: 9780198744009
Published to Oxford Scholarship Online: August 2017
DOI: 10.1093/oso/9780198744009.001.0001

Marriage as a Violation of Equality


Clare Chambers

DOI:10.1093/oso/9780198744009.003.0001

Abstract and Keywords

This chapter makes the foundational egalitarian case against marriage. It starts with a
historical overview of feminist objections to marriage. Marriage undermines womens
equality both practically and symbolically. Feminists criticize marriage for being both
sexist and heterosexist. This two-pronged attack looks puzzling. How can it be both bad
for women to be married and bad for lesbians and gays to be unmarried? The
discussion continues with an analysis of whether same-sex marriage is egalitarian. It
concludes that, in a marriage regime, same-sex marriage is both required by and
insufficient for equality. Finally, the chapter argues that reformed versions of marriage
such as civil union still enact inequality between those who have and those who lack
the relevant status. It follows that the abolition of state-recognized marriage best meets
the myriad egalitarian objections to the institution.

Keywords: Marriage, equality, feminism, civil union, same-sex marriage, sex discrimination, lesbian and gay
rights, sexism, civil union, egalitarian

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Marriage as a Violation of Equality
Feminists have long criticized the institution of marriage. Historically, it has been a
fundamental site of womens oppression, with married women having few independent
rights in law. Currently, it is associated with the gendered division of labour, with
women taking on the lions share of domestic and caring work and being paid less than
men for work outside the home. The white wedding is replete with sexist imagery: the
father giving away the bride; the white dress symbolizing the brides virginity (and
emphasizing the importance of her appearance); the vows to obey the husband; the
minister telling the husband you may now kiss the bride (rather than the bride herself
giving permission, or indeed initiating or at least equally participating in the act of
kissing); the reception at which, traditionally, all the speeches are given by men; the
wife surrendering her own name and taking her husbands.

Despite decades of feminist criticism the institution resolutely enduresthough not


without change. The most significant change has been in the introduction of same-sex
marriages and civil unions in countries such as the UK, the Netherlands, Belgium, the
Nordic countries, Ireland, Spain, France, Canada, and the USA. In the USA in
particular, same-sex marriage has recently been a fiercely contested and central part of
political debate, with many states alternately allowing and forbidding it as the issue
passed between the legislature, the judiciary, and the electorate, until the issue was
settled at the federal level with a Supreme Court ruling.1

If marriage is to exist as a state-recognized institution then it must, as a requirement of


equality, be available to same-sex couples. There is a great deal to celebrate in recent
moves to widen marriage, and it is hard not to be touched (p.12) by the scenes of
2
same-sex couples rejoicing as they are finally allowed to marry. But even these
welcome reforms do not go far enough.

Feminists have been the main critics of the institution of marriage.3 Feminists attack
marriage from several different angles, which can leave the feminist position somewhat
conflicted on whether reforms such as same-sex marriage render the institution just. As
I argue in this chapter, the best way to meet feminist and egalitarian concerns is to
support the abolition of state-recognized marriage.

(p.13) Consider the following:

My current position on marriage is that I am against it.Politically, I am against it


because it has been oppressive for women, and through privileging
heterosexuality, oppressive for lesbians and gay men.4

In this quote, and in feminist argument more generally, we can identify two distinct
critiques of marriage. Both are common and yet in tension. The first states that
traditional marriage is bad because it oppresses women. The implication of this critique
is that being married makes women worse off. The second critique is that traditional
marriage is bad because it privileges heterosexuality. The implication is that being
married makes people, both men and women, better off: it provides benefits that are
unjustly denied to lesbians and gays. But these critiques seem contradictory. If
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Marriage as a Violation of Equality
marriage oppresses at least some of its participants, why would lesbians and gays want
to participate in it? On the other hand, if marriage ought to be extended to lesbians and
gays because it confers privilege, what have feminists been complaining about all this
time? And yet the two critiques are found together in the writings of many feminists.

This split in common feminist critiques of marriage explains why it can seem so difficult
to develop a coherent feminist position and to be sure which sorts of reforms are
progressive and which are reactionary. It explains, that is, the troubling ambiguities
expressed by Merran Toerien and Andrew Williams, who label themselves a feminist
couple. In short, they write, we want to get married and we do not.5

1.1 Marriage as Oppressive to Women


Consider first the argument that marriage oppresses women, through a brief overview
of the history of feminist criticism of the institution. Marriage has often been a trap for
women, a state of imprisonment and sometimes brutality that they must endure,
escape, or eschew. That is to say, marriage has played a significant role in maintaining
the wider regime of gender inequality, since it has been used to consolidate legal,
economic, cultural, and symbolic oppression by confining women to a private sphere in
which they are seriously disadvantaged. Those significant women in history whom we
know about are often victims or refusers of marriage. Consider, for example, Saint
Radegund, one of the three (p.14) patron saints of Jesus College, Cambridge.
Radegund was born in the first century as a German princess, but was captured by the
Frankish King Chlothar I as a war prize when she was 11 or 12. Chlothar forced her to
marry him when she became 18. The experience was not pleasant, to put it mildly:
Chlothar was rough, brutal, unfaithful, and often drunk,6 and he ordered the murder
of her only surviving relative, her brother. Radegund fled the marriage and sought the
protection of the Church, for religious life was one of the few activities that allowed
women to live with neither marriage nor censure.

Or consider Queen Elizabeth I whose mother, Anne Boleyn, was executed by serial wife-
killer King Henry VIII. At first Elizabeth was excluded from rule as her father had his
marriage with her mother annulled, rendering her illegitimate. She came to the throne
in 1558 on the death of her half-sister, Queen Mary I. Elizabeths reign was dominated
by discussions of her marriage, and her refusal ever to marry earned her the nickname
The Virgin Queen and a cult following.

Early feminists criticized marriage with the full force of condemnation reserved for the
most grievous injustice. For John Stuart Mill in 1869 marriage was the primitive state
of slavery lasting on,7 a condition secured by wives legal subordination to their
husbands in every respect. In England at the time that Mill was writing, the system of
coverture was in place, according to which married women were subordinate and
subsumed to their husbands in law. So wives legally ceded all their property, as well as
custody and control of their children, to their husbands, were under a legal duty to
obey their husbands, were unable to vote or divorce, and could legally be raped by

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Marriage as a Violation of Equality
their husbands. Mill described womens legal duty to submit to marital sex as the
lowest degradation of a human being, that of being made the instrument of an animal
function contrary to her inclinations.8

Some aspects of English coverture were reformed soon after Mill published The
Subjection of Women. In 1870 the Married Womans Property Act allowed women to
keep property acquired after marriage, and a further Act in 1882 gave them rights over
the property they owned prior to marriage. But English women had to wait until 1891
to be given the legal right not to be imprisoned by their husbands, and until 1991
(thats not a misprint) to be given the legal right not to be raped in marriage. Divorce
laws were unequal until 1923.9

(p.15) Emma Goldman, who was born in Russia but emigrated to the USA, agreed with
Mill that marriage subjected women to men. In 1910 she wrote:

Marriage is primarily an economic arrangement, an insurance pact. It differs


from the ordinary life insurance agreement only in that it is more binding, more
exacting. Its returns are insignificantly small compared with the investments. In
taking out an insurance policy one pays for it in dollars and cents, always at
liberty to discontinue payments. If, however, womans premium is a husband, she
pays for it with her name, her privacy, her self-respect, her very life, until death
doth part. Moreover, the marriage insurance condemns her to life-long
dependency, to parasitism, to complete uselessness, individual as well as social.10

Simone de Beauvoir argued in 1949 that marriage remained deeply unequal. On her
analysis, marriage is required of women for two reasons: first, they must provide
children and marriage provides the socially acceptable context for childbearing, and
second, womans function is also to satisfy a males sexual needs and to take care of
his household.11 Marriage imposes both benefits and burdens on men and women, but
there is no symmetry in the situations of the two sexes; for girls marriage is the only
means of integration in the community, and if they remain unwanted, they are, socially
viewed, so much wastage.12 For women, de Beauvoir notes, marriage was the only way
to experience sex and motherhood without punishing social disapproval. For all these
reasons a great many adolescent girlsin the New World as in the Oldwhen asked
about their plans for the future, reply as formerly: I want to get married. But no
young man considers marriage his fundamental project.13 Nonetheless, the reality of
marriage was horrific for many women: the girls concerned had been too carefully
brought up, and since they had no sexual education, the sudden discovery of eroticism
was too much for them.Today many young women are better informed; but their
willingness remains formal, abstract; and their defloration is still in the nature of a
rape.14

By the 1960s womens situation had changed. During World War II women in western
countries had experienced unprecedented equal opportunities at work, with jobs
previously reserved for men now having to be done by women. But the end of the war

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Marriage as a Violation of Equality
saw mens return, bringing social pressure for women to return to the home so that
men could have their jobs back. In The Feminine Mystique in (p.16) 1963 Betty
Friedan wrote about the problem that has no name:the strange stirring, a sense of
dissatisfaction, a yearning that women suffered in the middle of the twentieth century
in the United States.15 The cause of this problem, Friedan argued, was the mystique
of feminine fulfilment16 which dictated that women should dream only of becoming
housewives. This dream left no room for personal development, for career success, for
female personhood:

The new mystique makes the housewife-mothers, who never had a chance to be
anything else, the model for all women; it presupposes that history has reached a
final and glorious end in the here and now, as far as women are concerned.
Beneath the sophisticated trappings, it simply makes certain concrete, finite,
domestic aspects of feminine existenceas it was lived by women whose lives
were confined, by necessity, to cooking, cleaning, washing, bearing childreninto
a religion, a pattern by which all women must now live or deny their femininity.17

For Friedan, the solution was not to abandon marriage but for women to integrate
marriage and motherhood with a career and, most fundamentally, for each woman to
think of herself as a human being first.18

Changing norms of sexual behaviour for women in the 1960s and 1970s may have gone
some way towards weakening the grip of marriage. But marriage remained an
institution subject to feminist critique. Second wave feminists continued to see
marriage as a source of womens inequality. Sheila Cronan, radical feminist and
founding member of Redstockings, decried the deceits of the marriage vows. As she put
it in 1970, The marriage contract is the only important legal contract in which the
terms are not listed.19 On the one hand marriage vows commit the parties to do things
in which the courts take no interest, such as love each other. On the other hand,
marriage vows fail to mention obligations which were legally enforced, such as the
wifes duty to submit to sex with her husband. As already noted, the criminal act of
rape could not occur within marriage in England and Wales until 1991, in the House of
Lords case of R v R; the UK is by no means an outlier in waiting until the last gasps of
the twentieth century to give women the legal right to refuse sex with their husbands.

Cronans critique of marriage was not confined to marital rape. She argued, as Mill had
one hundred years earlier, that married life is akin to slavery since being a wife is a
full-time job for which one is not entitled to receive pay. Does this not constitute
slavery?20 True, marriage is consented to, but this fact only makes its (p.17)

enslavement more cruel and inhumane.21 Womens consent to marriage is borne not
of their autonomy but of social construction:

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Marriage as a Violation of Equality
Marriage has existed for so many thousands of yearsthe female role has been
internalized in so many successive generations. If people are forced into line long
enough, they will begin to believe in their own inferiority and to accept as natural
the role created for them by their oppressor. Furthermore, society has been
structured so that there is no real alternative to marriage for women.
Employment discrimination, social stigma, fear of attack, sexual exploitation are
only a few of the factors that make it nearly impossible for women to live as single
people.Also, marriage is so effectively described in such glowing terms that
young girls rush into it excitedly, only to discover too late what the real terms of
the marriage contract are.22

For socialist feminist Juliet Mitchell, writing in 1971, marriage formed part of the
generally oppressive, socially-constructed model of a family. As she puts it:

[T]oday women are confined within the family which is a segmentary, monolithic
unit, largely separated off from production and hence from social human activity.
The reason why this confinement is made possible is the demand for women to
fulfil these three roles: they must provide sexual satisfaction for their partners
and give birth to children and rear them. But the family does more than occupy
woman: it produces her.23

Part of the problem, for Mitchell, is that state-recognized marriage is utterly simple
and rigid: it admits only one ideal-type of relationship, despite the fact that inter-
sexual and inter-generational relationships are infinitely various.24

Other radical feminist critics of marriage in this period include Kate Millett, for whom
Patriarchys chief institution is the family.25 Shulamith Firestone goes one step
further, declaring in 1979 that love, perhaps even more than childbearing, is the pivot
of womens oppression today.26 Firestones critique echoes aspects of Friedans
critique of housewifery:

(Male) Culture was built on the love of women, and at their expense. Women
provided the substance of those male masterpieces; and for millennia they have
done the work, and suffered the costs, of one-way emotional relationships the
benefits of which went to men and to the work of men.27

Artist Sally Swains excellent book The Great Housewives of Art deftly and humorously
illustrates this point, adapting famous paintings to show the activities of hidden
women. So Mrs Degas vacuums the floor while en pointe in full (p.18) ballerinas outfit,
Mrs Monets attempts to clean the pond are evident only by a net surreptitiously
probing the waterlilies, Mrs Klimt sews a patchwork quilt behind the head of her
husband, who nuzzles her neck oblivious to her labour, and Mrs Pollock simply cant
seem to find anything anymore.28

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Marriage as a Violation of Equality
From the 1980s, perhaps inspired by the growth of neoliberalism in Margaret
Thatchers Britain and Ronald Reagans USA, feminist critiques of marriage had taken
a new turn. Feminists such as Martha Fineman, Marjorie Shultz, Elizabeth Kingdom,
and Lenore Weitzman argued that marriage could be improved for women by being
made more properly contractual.29 The problem with marriage, as these writers saw it,
was that it was a contract whose terms were set by the state, and in the most unequal
fashion. Equality could be achieved either by allowing people to supplement marriage
with contract, or by replacing marriage with contract. Thus Fineman argued for the
abolition of marriage as a legal category and, with it, the demise of the entire set of
special rules attached to it,30 to be replaced by contracts. Contract thinking was not
universal amongst feminists of this period, though. One landmark critic of both
marriage and contracts was Carole Pateman, in her 1988 book The Sexual Contract. I
devote Chapter 4 to critical analysis of relationship contracts.

Susan Moller Okin also criticized marriage in this period without turning to contracts.
In 1989 she developed a sustained attack on what she called vulnerability by
marriage. She argued that marriage has earlier and far greater impact on the lives
and life choices of women than on those of men, with girls less likely to aspire to
prestigious occupations or feel able to contemplate being happily independent,31 and
marshalled a variety of evidence to show that marriage left women emotionally and
practically vulnerable. Okin argued for a thorough overhaul of marriage law and
practice, including proposals for obligatory egalitarian division of income between
breadwinners and housewives during marriage and after divorce.32

Such changes are not easy. Changes to marriage law in favour of gender equality are
hard-won victories resting on the suffering of many women, and changes in social
norms concerning domestic labour are extremely hard for even (p.19) feminist women
33
and would-be egalitarian couples to achieve. Nonetheless, proposals such as Okins
suggest that marriage can in principle be egalitarian, even though this would require
radical social and legal change.34

Other late twentieth-century feminists were more sceptical. Claudia Card published
Against Marriage and Motherhood in 1996. On her analysis, the very idea of marriage
as a state-awarded licence giving claims over another persons property and person is
profoundly problematic, for it exposes individuals to each other and creates legal
barriers to separation. In doing so, marriage inevitably leaves its participants
(especially women) vulnerable to abuse. As Card puts it: For all that has been said
about the privacy that marriage protects, what astonishes me is how much privacy one
gives up in marrying.Anyone who in fact cohabits with another may seem to give up
similar privacy. Yet, without marriage, it is possible to take ones life back without
encountering the law as an obstacle.35

There is no denying that marriage oppressed women when it was the legal instrument
of gender inequality. If wives cannot own property, be the legal guardians of their
children, resist attack or rape or imprisonment from their husbands, or be entitled to

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Marriage as a Violation of Equality
equal rights at school and work, then marriage is a straightforward instrument of
womens oppression. But liberal democracies in the twenty-first century have generally
abolished these explicit inequalities of marriage, so what of the institution now? Does
the feminist critique retain force?

The feminist critique can be divided into what I call practical and symbolic effects. This
distinction is not rigid but indicates the difference between ways in which marriage
might affect individuals material or legal status and ways in which it consolidates or
instantiates social norms or ideological values.

The first feminist critique of marriage has always been that it has practical effects on
women that make them worse off. The end of legal inequality in marriage has not
meant the end of actual inequality. Practical, empirical harms to women resulting from
marriage include the contingent facts that marriage tends to reinforce the gendered
division of labour, which itself means that women earn less and are less independent
than men; that it reinforces the idea that women do most of the housework, even if they
work outside the home, which saps their energies and dignity; and that domestic
violence may be exacerbated by (p.20) marital concepts of entitlement and
ownership.36 Elizabeth Brake assesses the data from the USA and argues that
marriage continues to perpetuate elements of womens oppression, understood as the
diminishment of their life opportunities through the interaction of systematic legal,
social, and economic forces, in particular spousal violence and economic dependence
derived from gendered spousal roles.37 In the UK, sociologists Sara Arber and Jay Ginn
analyse data relating to 32,000 people and conclude A major stumbling block to
womens equality both in the labour market and the domestic sphere is the influence of
the normative ideology of gender roles in marriage.38 They point to a mutually-
reinforcing relationship between the fact of material gender inequality (the wage gap)
and the marital ideology of husband-as-breadwinner: each apparently justifies and
exacerbates the other. Failure to contest this normative structure, they write, is a
major factor in the perpetuation of womens disadvantaged position in British
society.39

One issue is whether these practical oppressions are the result of marriage, or
cohabitation, or heterosexual relationships, or relationships in general. There are
complex connections between gendered oppression, heteronormativity, and marriage,
and it is beyond the scope of this book to provide a complete analysis.40 But the status
quo, in which marriage is recognized by the state and understood by state and society
as the default mode for adult life, means that we cannot draw a neat dividing line
between what happens in marriages and what happens elsewhere, in heterosexual or
same-sex relationships, in cohabiting or casual relationships, in monogamous or
polygamous relationships. Marriage is the norm, and the ideal: the situation that the
state assumes, defines, regulates, and recommends. As we shall see shortly, the same-
sex marriage movement is understood by many to be a demand for assimilation and
normalization.

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Marriage as a Violation of Equality
Nonetheless, there are some important differences between marriage and non-
marriage in terms of practical effects. One example is housework. Various studies show
that marriage increases the gender inequality of housework. Sanjiv Gupta analyses
data from the USA and finds that both marriage and cohabitation (p.21) significantly
41
increase womens hours of housework and decrease mens. He argues that these
results constitute strong evidence for a causal relationship between marital status and
housework time.42 Scott South and Glenna Spitze compare six different kinds of
households in the USA: never married and living with parents, never married and living
independently, cohabiting, married, divorced, and widowed. They find that women do
more housework than men across the board, but that the gender gap is highest among
married persons.43 Mens hours of housework remain consistent whether married or
single (they increase where men are divorced or widowed), but womens hours are
higher when cohabitating and higher still when married. The authors argue that wives
increased housework is not explained by children or reduced hours of paid work, and
attribute it instead to the increased power of the normative requirement to display
gender that marriage brings.44

Another example is domestic violence. Michael Johnson and Kathleen Ferraro argue
that domestic violence can best be understood if distinctions between different
categories of violence are made. Common Couple Violence or CCV arises in the
context of a specific argument in which one or both of the partners lash out physically
at the other.45 CCV does not usually escalate and is most likely to be mutual, although
men are somewhat more likely to be the perpetrators than are women. It is found in
marriage, but also in cohabitation and dating relationships, and is not confined to
opposite-sex couples. But Intimate Terrorism or IT is correlated with marriage. In IT,
violence is used as merely one tactic in a general pattern of control. The violence is
motivated by a wish to exert general control over ones partner. IT involves more per-
couple incidents of violence than does CCV, is more likely to escalate over time, is less
likely to be mutual, and is more likely to involve serious injury.46 Some studies find
that IT is more common in marriage than in cohabitation or dating relationships,
leading Johnson and Ferraro to wonder whether marriage, although not a license to
hit, is for some people a license to terrorize.47 What we can say is that, even where
(p.22) domestic violence takes place in non-marital relationships, it is connected to

tropes of ownership and control that are distinctively marital.

The state recognition of marriage also has implications more broadly, since it shores up
the notion of the couple-headed household as ideal family form, which in turn shores up
the system that makes children and work difficult to combinewhat Joan Williams
refers to as the clash between the norm of the ideal worker and the norm of parental
care.48 These clashing norms thus make life even harder for unmarried people as
compared with married ones, since they strengthen the ideas that work does not have
to take account of caring responsibilities, that children are harmed if their mothers
work outside the home, and that people should not rely on state benefits. These ideas

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Marriage as a Violation of Equality
are compatible only within a family structure based on traditional marriage, with a
breadwinning husband and a housewife, and yet they provide the cultural, legal, and
financial structures within which everyone must operate.

The extent to which marriage is associated with practical oppression or disadvantage


for women depends on particular laws and sociological facts. In past incarnations of
marriage, when the institution left women with few or no rights over their bodies,
possessions, children, and lives, practical feminist critiques were particularly salient.
But feminists have also always argued that marriage disadvantages women
symbolically, by casting women as inferior. This theme recurs in several of the
historical feminist critiques just surveyed. It is still deeply relevant today.

Pierre Bourdieu describes this form of symbolic effect as symbolic violence. Symbolic
violence affects thoughts rather than bodies, and is inflicted upon people with their
complicity.49 In other words, symbolic violence occurs when, through social pressures,
an individual feels herself to be inferior or worthless. One particularly pernicious form
of symbolic violence that marriage enacts on women in contemporary western societies
is the sense that they are flawed and failing if unmarried. Many heterosexual women
see single life as a temporary phase preceding marriage, and being single for longer or
when older is construed as sad and shameful, and at least partially the fault of the
single woman herself.50 A particularly striking example of this sort of pressure can be
found in The Rules, (p.23) the best-selling self-help book that instructs women to
secure marriage by following a strict set of guidelines such as not telephoning men, not
describing their own sexual desires or asking them to be met, and not minding when
men are angry. Women wishing to ignore, let alone criticize, The Rules are sharply
admonished:

If you think youre too smart for The Rules, ask yourself Am I married? If not,
why not? Could it be that what youre doing isnt working? Think about it.51

J. Jack Halberstam provides many examples of the portrayal of marriage as ultimate


destiny for women in popular culture. The pinnacle of this form, of course, is the
romantic comedy. In the average rom com marriage is both womens downfall and
their ultimate aim: protagonists have to overcome various pitfalls on their way to the
altar, such as commitment-phobic men, choosing the wrong man, choosing the wrong
dress, choosing the wrong bridesmaids, choosing the wrong bridesmaids dressesThe
aim always has to be marriage, though, spurred on by the fear of spinsterdom. As
Halberstam puts it The wedding is the cum shot of the romantic comedy.52

We might ask whether it would matter if women felt pressure to enter into marriage if
it were the case that the practical aspects of marriage were egalitarian. In other words,
if marriage no longer disadvantaged women practically, would it matter if women were
pressured to enter it symbolically? We might have a number of autonomy- and
diversity-based objections to such pressure, which would apply to both women and
men. But one way in which pressure to enter into even reformed marriages might

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Marriage as a Violation of Equality
particularly harm women (and thus be of particular concern to feminists) is through the
simple fact that marriage has historically been an extremely sexist institution. Even if
these historical oppressions have been reformed, such that wives are equal to
husbands in law, marriage remains an institution rooted in the subjection of women.53

The question of whether the patriarchal history of an institution continues to taint its
modern incarnations even if the explicitly patriarchal aspects have been (p.24)

reformed is a vexed one.54 It seems obvious that institutions need not remain unjust
forever, beyond the abolition of that which initially made them unjust. For example,
cotton picking in the USA and chimney sweeping in the UK were once done by slaves
and children respectively, both unjust forms of labour; and democratic participation
was denied to women in the UK (and elsewhere) until the extension of the suffrage in
the early twentieth century. But cotton picking, chimney sweeping, and democracy are
not inherently unjust once slavery, child labour, and sex discrimination are abolished:
the injustice does not outlive its concrete manifestation. Why, an objector might ask,
should marriage be any different?

The question of whether an unjust institution remains unjust after reform invokes two
key issues: participation and meaning. First, consider participation. It is possible for an
institution to be unjust only because participation in it is on unequal terms; in these
cases, equal participation removes the injustice. The example of democracy is like this.
The ideal of democracy is government by the people, and participation in a society of
equals. The male-only suffrage is unjust precisely because it excludes women from the
category of the people, reflecting and perpetuating a context in which they are
treated unequally. If women are the only group excluded from the vote then changing
the situation to allow women to participate ends the injustice, because their
participation changes the institution of voting from one that is exclusionary and based
on inequality to one that is inclusive and egalitarian. The same is not true if women are
not the only group excluded from voting. If a multi-racial society initially allows only
white men to vote and then opens the suffrage to include white women, the move is in
some sense an improvement. But opening the vote to white women in such a society
does not make the institution of voting just if people of colour remain excluded from it.

So too for marriage. Like democracy, marriage may be rendered more just if it is
opened up to more people: introducing same-sex marriage is an improvement on
traditional marriage. But introducing same-sex marriage does not make the institution
of marriage just if other people are excluded from it and the benefits it provides. The
move to same-sex marriage still excludes people in non-monogamous relationships, and
people who are in monogamous relationships but who do not want to solemnize those
relationships through the institution of marriage for reasons such as religion, culture,
politics, uncertainty, or one persons reluctance. (p.25) This group also includes people
who are not in stable sexual or personal relationships at all but who could still benefit
from things such as tax breaks, immigration rights, health insurance, or pension rights.

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These are rights that individuals may legitimately want to assign to friends, relatives,
or cohabitants: anyone with whom one has a non-conjugal yet significant relationship.
Including same-sex couples in the category of people who may participate in and
benefit from marriage is thus not sufficient to rectify the participatory injustice.

The second issue, particularly pertinent in the case of marriage, is that of meaning.
Return to the examples of cotton picking and chimney sweeping. These activities do not
remain unjust if their association with slavery and child labour is removed, because
there is nothing inherently unjust about the activities of picking cotton and sweeping
chimneys. It would, of course, be possible for the injustice of those professions to
persist, if people who worked in them were denied adequate wages or safety equipment
or faced unfair working conditions. But it is in principle possible for those activities to
be performed in fair conditions for fair pay.

It follows that cotton picking and chimney sweeping can in principle be performed
justly. One way of seeing this is to note that many welfare states, such as the one in the
UK, provide unemployment benefit only if no job is available to the claimant. That may
or may not be a just arrangement (the movement for basic income argues that it is not).
But if it were a just arrangement then it would not be unjust to require a fit, able-
bodied person to take a job as a chimney sweep or a cotton picker or else lose
unemployment benefits, as long as those jobs were fairly paid and properly regulated.

The same is not true of all jobs. It would not be compatible with justice to require
someone to take a job as a prostitute or else lose benefits, and this injustice would
persist even if being a prostitute were fairly paid and properly regulated. First, the
injustice of prostitution is largely based on the deep and ancient gender inequality
associated with that practice, a gender inequality that persists in society at large.
Prostitution has always been an activity providing male access to womens bodies,
based on a model of human sexuality that places mens needs over womens and that
regards prostituted women as debased objects for use. Paying prostituted women fairly
does not undermine those deep-seated cultural meanings of the practice. Second,
prostitution makes sense only in a context of wider gender inequality, one in which
many women lack realistic alternative options for achieving financial independence
such that prostitution may appear the best, or only, option. Improving conditions for
prostituted women, though laudable in and of itself, does not change the context of
inequality that makes prostitution exist as a gendered phenomenon. Third, ones
(p.26) sexuality and ones sexual organs are deeply private and intimate, and it is a
profound and crucial part of our cultural understanding of sex that it must be fully
consensual if it is not to be criminal and abusive. Improving conditions for prostitution
does not remove the profound injustice of being forced to have sex in order to survive.

For all these reasons, it would not be acceptable for the state to require people to take
jobs in prostitution or else lose benefits, even if prostitution were fairly paid and
properly regulated. State-mandated prostitution would worsen and not mitigate the
idea that it is appropriate for men to use womens bodies for sexual satisfaction, and it

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Marriage as a Violation of Equality
would not undermine the idea that womens bodies are appropriately considered as
objects for use. Even if men were also required to take such jobs where possible the
situation would still be unjust, because there would not be such a demand for male
prostitutes as female prostitutes (and so it would be less likely that men would in fact
have to take such a job), and because a prostituted man is not regarded as a debased
object for use and abuse in the same way as a prostituted woman. Male prostitution
does not undermine gender inequality generally. And finally, even if we ignore the
gendered aspects of prostitution, the privacy and intimacy of sex and the necessity for
it to be fully consensual mean that it would still be unjust to require anyone to have sex
with other people indiscriminately in order to survive.

State-recognized marriage shares many of the meaning-based features of prostitution,


even though marriage is not nearly as unjust as state-mandated prostitution would be.
First, like prostitution marriage is an institution that is largely based on ancient and
enduring inequality between women and men, one that stems from and reinforces a
gendered society in which women are viewed as objects for male ownership and use.
Second, its location within a wider system of gender equality means that marriage, like
prostitution, is more central to womens life chances than it is to mens. The
persistence of the gender pay gap and discrimination against women in the workplace,
both of which worsen considerably when women become mothers, mean that women
are much more dependent than men are on marriage and the financial support of a
spouse.55 The persistence of cultural pressures on women to get married means that
women are much more likely to feel that they have to get married in order to be
valuable. But it is unjust if womens ability to combine work and motherhood, the social
bases (p.27) of womens self-respect, and the benefits which are associated with
marriage, are all dependent on participation in a particular form of sexual relationship.

What makes marriage distinctive is that it is an institution entered into not only for the
practical benefits it may bring but also because of the meanings it represents,
something discussed in more detail in Chapter 2. Couples may marry so as to obtain
various practical benefits, but a key aspect of most marriages is the statement the
couple make about their relationship. For the marrying couple and for society in
general, the symbolic significance of marriage is at least as important as its practical
aspects, as demonstrated in debates about same-sex marriage discussed next.

Thus the state recognition of marriage is state intervention in, and control of, the
meaning of marriage. As Tamara Metz puts it, the establishment of marriage
highlights the states integral role in reproducing and relying on belief in a particular,
comprehensive account and institutional form of intimate life.56 This being the case, it
is impossible to escape the history of the institution. Its status as a tradition ties its
current meaning to its past. This feature of marriage makes the issue of what the
institution really does represent, what meanings it carries, particularly pertinent.

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It is possible for practices to change their meanings, such that those that were once
associated with injustice can be transformed into practices of liberation and equality.
For example, the pink triangle was initially used by the Nazis as a symbol of stigma for
those prisoners in concentration camps who were deemed to be gay, but it has since
been reclaimed by the gay rights movement as a symbol of empowerment.57 As we
shall see in Section 1.2, there is significant debate within feminism and the gay rights
movement as to whether same-sex marriage will have a progressive or reactionary
effect.

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1.2 Marriage as Heterosexist


As noted at the outset, the number of countries that recognize same-sex marriage has
increased dramatically in recent years. However, for the vast majority of its history,
marriage has been an institution reserved for different-sex couples, assumed to be
heterosexual. Thus the second major strand of feminist critique of marriage is that it is
heterosexist.

According to this critique marriage benefits those who enter into it. Thus feminists,
who favour gender equality and oppose discrimination on the grounds (p.28) of both
sex and sexuality, must oppose marriage as long as it is denied to same-sex couples.58
Many feminists campaign for the extension of marriage to same-sex couples, and some
argue that extending marriage to lesbians and gays would transform the institution.

Once again, this line of argument can be separated into practical and symbolic strands.
Practically, marriage privileges heterosexuality if it is denied to same-sex couples and if
the law is structured so as to give married couples particular rights that are denied to
unmarried couples. Such laws discriminate against not only same-sex couples but all
unmarried individuals (whether single or in a relationship). In the UK, for example,
spouses and registered partners (who must be same-sex) do not have to pay inheritance
tax when inheriting each others property, unlike those in any other form of
relationship, and until recently marriage was available only to different-sex couples.
Material benefits such as this lead Thomas Stoddard to advocate same-sex marriage
despite the oppressive nature of marriage historically, and in spite of the general
absence of edifying examples of modern heterosexual marriage.59

Heterosexual-only marriage also has discriminatory symbolic effects. By recognizing


heterosexual marriage, the state confers legitimacy and approval on such partnerships
and denies it to gay and lesbian ones. Thus Maria Bevacqua, a lesbian feminist, argues:

The exclusion of a portion of the population from a major social institution creates
a second-class citizenship for that group. This is a humiliating experience,
whether as individuals we feel humiliated or not.60

Bevacquas insistence that the humiliation is independent of the feelings of the


humiliated emphasizes the deeply symbolic nature of the institution. Marriage presents
and represents a particular symbolic meaning that transcends individuals subjective
self-understandings and experiences. Instead, it appeals to supposedly shared social
understandings of value, understandings that can fail to respect minority and
historically-oppressed groups. In particular, marriage reinforces the idea that the
monogamous heterosexual union is the (only) sacred form of relationship.

Stoddard argues that marriage is the centrepiece of our entire social structure and
notes that the US Supreme Court has called it noble and sacred.61 (p.29)

Understandably he resents and loathes the fact that, according to the Court at the
time he was writing, lesbians and gays were not deemed able to enter into such noble

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Marriage as a Violation of Equality

and sacred relationships.62 Like Bevacqua, Stoddard believes that legalizing same-sex
marriage is a crucial egalitarian step, even if many gays and lesbians have no desire to
marry. Indeed, Stoddard argues that same-sex marriages would also benefit
heterosexual women, as they would serve the feminist purpose of abolishing the
traditional gender requirements of marriage and thus divesting the institution of the
sexist trappings of the past.63

According to these feminist critiques, then, marriage oppresses both those


heterosexual women who do or could participate in it and those lesbians and gays who
could not; and it does so in ways that are both practical and symbolic. But these
criticisms can conflict in their implications for marriage reform, rendering the debate
exceedingly complicated. Consider, for example, whether it would be desirable from an
egalitarian perspective to legalise same-sex marriage.

1.3 Is Same-sex Marriage Egalitarian?


I stated earlier that, if marriage is to be recognized by the state at all, then equality
requires the recognition of same-sex marriage. But perhaps that claim was too hasty.
With the various feminist critiques in mind, we can now see that the issue is by no
means clear-cut.

Reserving marriage for different-sex couples is, according to the feminist critiques
considered so far, symbolically oppressive to both women and gay men. If same-sex
couples are allowed to marry, it is not clear whether its oppressiveness will rub off onto
lesbians and gays, making them worse off, or whether the anti-patriarchy of queer lives
and culture will rub off onto marriage, making all women better off.

Feminists and advocates of gay rights have argued both ways but, in the current
political climate, pro-marriage voices prevail. The simplest egalitarian argument in
favour of same-sex marriage is that it is needed to rectify an inequality of civil rights
and practical benefits. This issue is particularly salient in those polities which connect a
great deal of rights and duties to marriage. The USA is paradigmatic here, as marriage
is crucial in many areas such as health insurance, welfare payments, housing, and
immigration.64 So Margaret Morganroth Gullette writes that she was transformed from
a rebellious critic of the institution (p.30) into a vocal and explicit advocate as the
result of recognizing and honoring the growing desire of some of my lesbian friends
and relatives to enjoy the protections that marriage now extends only to
heterosexuals.65 For Joan Callahan, since the complete abolition of marriage is a long
way off, same-sex marriage is a central way to work on defeating systemic homophobia
and heterosexism, while immediately affording equal crucial rights and goods of many
sorts to sexual and gender minorities.66 This is the sense in which we can initially state
that egalitarians should support same-sex marriage, if marriage exists at all.

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But the egalitarian case for same-sex marriage does not rest only on the practical legal
benefits that accompany marriage, for many of those could be provided to unmarried
people on equal terms (and since there is an equally pressing inequality of service
provision for those who are unmarried by choice). Instead, the basic argument for
same-sex marriage on the grounds of equality is that the right to marry, pure and
simple, must be equally available to all.

The idea that the right to marry is both intrinsically valuable and sometimes
illegitimately denied is grounded in recent historical experience. For example,
restrictions on interracial marriage were in place in Nazi Germany and South African
apartheid. In the USA slaves were not able to legally marry, and slave families were
subject to permanent separation at the whims of their owners.67 The end of slavery did
not mean the end of unequal marriage by race, for many states retained
antimiscegenation laws prohibiting interracial marriage. In 1967 the landmark
Supreme Court case Loving v Virginia struck down those laws as unconstitutional for
violating equal protection. In his ruling Justice Warren described marriage as one of
the vital personal rights essential to the orderly pursuit of happiness by free menone
of the basic civil rights of man, fundamental to our existence and survival.68 In its
ruling in Obergefell v Hodges in 2015 the Court once again affirmed the centrality of
marriage:

[T]he annals of human history reveal the transcendent importance of marriage.


The lifelong union of a man and a woman always has promised nobility and
dignity to all persons, without regard to their station in life.Its dynamic allows
two people to find a (p.31) life that could not be found alone, for a marriage
becomes greater than just the two persons. Rising from the most basic human
needs, marriage is essential to our most profound hopes and aspirations.69

Article 12 of the European Convention of Human Rights is entirely devoted to the right
to marry: Men and women of marriageable age have the right to marry and to found a
family, according to the national laws governing the exercise of this right.70

So marriage is often considered, even in liberal democratic states, to be central to


human flourishing. The experience and legacy of institutional racism and heterosexism
in marriage lends support to what I call the basic egalitarian claim for same-sex
marriage:

The basic claim: if different-sex marriage exists, then the principle of equal rights
requires the recognition of same-sex marriage.

The philosophical issue at stake is whether equal rights require same-sex marriage or,
to put it in reverse, whether restricting recognition to different-sex marriage just is to
instantiate unequal rights. This question might seem easy to answer but, like all
philosophical questions, it is not.

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The idea of marriage equality can be stated simply: if heterosexuals can marry then
lesbians, gays, and bisexuals should be able to marry as well. This apparent simplicity
is echoed in the fact that many supporters of same-sex marriage describe themselves
as supporters of marriage equality.71 On this reasoning, then, denying same-sex
marriage is denying equal rights. Thus Alex Rajczi claims that a case for same-sex
marriage can be built on only widely-accepted political principles of equal
opportunity:72 there is not one single thing wrong with homosexuality, and so gay
people should never be treated differently from anyone else.73

The basic claim that equality requires same-sex marriage is one with a great deal of
appeal for feminists and other egalitarians.74 But many have argued (p.32) against the
basic claim. For example, Richard McDonough argues that traditional, different-sex-
only marriage should not be equated with heterosexual marriage. Different-sex-only
marriage gives every single person regardless of sexuality the exact same, equal right:
to marry a person of a different sex. This right is not, he claims, worthless to lesbians,
gays, and bisexuals, since many of them have in fact had successful marriages to
people of a different sex. For McDonough, people are free to argue for the right to
marry persons of the same sex, but this must be an argument for a new right, for the
right which they want is not the same one already possessed by homosexuals.75
Same-sex marriage is not, then, a requirement of equality in the most basic sense, and
so the basic claim fails.

One response to McDonoughs argument is to say that it misdescribes the right that is
at stake. It may be true that, under traditional marriage, everyone has the right to
marry a person of a different sex. But the importance of the right to marry is not
captured by the idea of an interest in marrying a person of a different sex. After all,
antimiscegenation laws gave every person the right to marry someone of their own
race, but that way of stating the right to marry does not capture its intrinsic
importance.

Instead, we must construe the right to marry more carefully. There are various ways of
doing so: it could be a right to marry whichever consenting person you choose,76 or a
right that belongs to a couple as couple,77 or the right to marry for love.78 Similar
conceptual issues arise in all cases, so we can consider just one option. What is
valuable, let us assume, is the right to marry the person with whom you are in sexual
love. Since heterosexuals will, by definition, be in sexual love with people of a different
sex, the availability of different-sex marriage gives them the right to marry for sexual
love. Bisexuals have the right to marry for sexual love in some cases but not all; that is
to say, they are permitted to marry only some kinds of people with whom they may be
in sexual love. But since gays and lesbians feel sexual love only for people of the same
sex, then they do not have the right to marry for sexual love without same-sex
marriage.

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(p.33) The usual counter-argument at this point runs as follows. If equality requires
that same-sex couples have the right to marry for love, then it also follows that
polygamists have the right to marry for love, and adult incestuous couples have the
right to marry for love, such that there is a slippery slope from same-sex marriage to
polygamy and incest. For example, William Bennett asks rhetorically why on earth an
advocate of same-sex marriage would exclude from marriage a bisexual who wants to
marry two other people? After all, exclusion would be a denial of that persons
sexuality. The same holds true of a father and daughter who want to marry. Or two
sisters. Or men who want (consensual) polygamous arrangements.79

A great deal of the political, legal, and philosophical literature on same-sex marriage
has thus been devoted to the idea of whether the equality arguments for same-sex
marriage do entail the recognition of other sorts of marriage and, if so, whether that
would be a bad thing. One notable response comes from Jonathan Rauch, who argues
that lesbians and gays want the possibility of marrying for love but that that possibility
does not have to be unlimited. What homosexuals are asking for, he writes, is the
right to marry, not anybody they love, but somebody they love, which is not at all the
same thing.80 Rauch therefore argues that same-sex marriage does not entail support
for polygamy, since polygamy is essentially a demand to be able to marry more than
just some(one)body.81 In a similar vein, John Corvino gives many examples of what he
calls the PIB argumentthe argument that recognition of homosexuality leads
inexorably to recognition of polygamy, incest, and bestiality. He rejects this argument
on the grounds that there is no reason why homosexuality is more closely connected to
PIB (p.34) than heterosexuality. Sexual practices, for Corvino, ought to be evaluated in
terms of their relative contribution to human flourishingthere is no reason to
presuppose that homosexuality is more like PIB in this contribution than
heterosexuality.82 Other egalitarians disagree. Ronald Den Otter, for example, argues
that support for same-sex marriage does entail support for plural marriage, but that
this is not an argument against same-sex marriage since plural marriage is morally
unproblematic and deserves recognition.83

What this debate highlights is that we cannot debate marriage without making value
judgements about what marriage really is and why it is valuable.84 The basic claim
rests on the premise that same-sex relationships are the same as different-sex
relationships in some relevant characteristic. We therefore need to ask what the
relevant characteristic of marriage is: what is it about marital relationships that makes
them valuable and worthy of state recognition? The answer we give to this question will
determine how extensive marriage should be. If what is valuable about marital
relationships is their heterosexuality then we should endorse traditional marriage (and
possibly extend it to heterosexual incestuous couples). If it is procreation then we
should reserve marriage for those couples who are able and willing to procreate, which
may include same-sex couples using IVF, sperm donation, or surrogate mothers, and
include polygamous marriage, but exclude even different-sex couples who cannot or do
not procreate. If it is love or care then we should extend marriage to all loving and

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Marriage as a Violation of Equality
caring relationships, whether sexual or not. If it is stability and commitment then we
should extend marriage to all but make divorce much more difficult. If it is monogamy
then we should recognize monogamous relationships of whatever sex, but should be
less willing to consider remarriage after divorce. And so on.

The important point is that even the basic claim from equality cannot be made without
considering the meaning of marriage; and the meaning of marriage, as with all other
social, cultural, and legal institutions, is inevitably social. We are (p.35) not the sole
authors or arbiters of the meanings of our practices. Our practices mean, to a
significant extent, what they mean in the society in which they and we are situated. So
we are once again returned to the question of what marriage means, and whether its
patriarchal meanings are strengthened or overcome by the movement towards same-
sex marriage.

We have already seen that, for Stoddard, same-sex marriage is needed not just to
rectify inequality but also for what he assumes will be its more general progressive
effects. Cheshire Calhoun also argues that same-sex marriage is necessary as it marks
that homosexuality is no bar to full citizenship.85 On the other hand, Paula Ettelbrick
predicts the triumph of patriarchy and reaction: marriage will not liberate us as
lesbians and gay men. In fact, it will constrain us, make us more invisible, force our
assimilation into the mainstream, and undermine the goals of gay liberation,86 she
writes. Nancy Polikoff agrees: Everything in our political history suggests that a
concerted effort to achieve the legalization of lesbian and gay marriage will valorize the
current institution of marriage[and] work to persuade the heterosexual mainstream
that lesbians and gay men seek to emulate heterosexual marriage as currently
constituted.87

For Katherine Franke, the repressive effects of same-sex marriage extend to society as
a whole: Not only have some advocates of same-sex marriage abandoned any effort to
promote respect, non-discrimination, and recognition of diverse family forms, but they
have veered in the direction of portraying families with non-married parents as a site of
pathology, stigma, and injury to children,88 she writes. Letting same-sex couples into
the club leaves in place the bias and shame suffered by those who cant or wont fulfil
the criteria for membership.89 For Franke the deeply normative nature of marriage,
which same-sex marriage strengthens rather than undermines, can be seen by looking
at those who defend same-sex marriage from a conservative standpoint: When the
conservatives sign up for marriage equality, they do so because it dawns on them that
their interests in traditional family values, in the nuclear family, in privatizing
dependency, and in bourgeois respectability are stronger than their homophobia.90

Franke also worries that many same-sex couples, particularly gay men, wish to engage
in prenuptial agreements that circumvent requirements such as alimony. (p.36) These
prenups may be quite appropriate for the structure of those relationships, if they do not
take the traditional gendered form of breadwinner and dependent homemaker, since

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Marriage as a Violation of Equality
standard divorce law would lead to an unjust distribution of assets. But their increased
use risk[s] undermining or weakening the justice-enhancing traditions that womens
rights advocates have worked hard to build into marriage.91

Card is another prominent feminist critic of same-sex marriage. She argues that, while
it is unjust that marriage is denied to lesbians and gays, the injustice of the institution
as a whole means that lesbians and gays should not fight for the right to marryjust as
white women should not have fought for the (equal) right to be slave-owners:

Let us not pretend that marriage is basically a good thing on the ground that
durable intimate relationships are. Let us not be eager to have the State regulate
our unions. Let us work to remove the barriers to our enjoying some of the
privileges presently available only to heterosexual married couples. But in doing
so, we should also be careful not to support discrimination against those who
choose not to marry and not to support continued state definition of the
legitimacy of intimate relationships. I would rather see the state deregulate
heterosexual marriage than see it begin to regulate same-sex marriage.92

Similarly, Judith Butler argues that the basic claim for equal civil rights obscures
symbolic injustice. The petition for marriage rights, she argues, seeks to solicit state
recognition for nonheterosexual unions, and so configures the state as withholding an
entitlement that it really should distribute in a non-discriminatory way, regardless of
sexual orientation. That the states offer might result in the intensification of
normalization is not widely recognized as a problem within the mainstream lesbian and
gay movement.93 Butler insists that this intensification of normalization is both evident
and troubling. The idea that marriage is the only way to sanction homosexuality is
unacceptably conservative,94 and the attempt to use same-sex marriage to rectify
heterosexism brings with it a host of new problems, if not new heartaches.95 Butlers
worry is that state recognition for same-sex marriage will further delegitimate non-
marital relationships and forms of life, an effect that would be particularly troubling for
the queer community.

(p.37) Sheila Jeffreys also argues that marriage must be abolished as a legal category
since it has inescapably sexist symbolic meanings. According to Jeffreys, when lesbians
and gay men demand marriage they shore up a foundational practice of male
dominance.I do not think that marriage can be saved and made into a neutral and
egalitarian institution that would be open to either heterosexuals or lesbians and gay
men.96

Ann Ferguson describes her own situation, in which her Muslim son-in-law convinced
his wife (Fergusons daughter) to prevent their child from seeing Ferguson on the
grounds that she was in a lesbian relationship. For Ferguson, [i]n this and other cases
of queer chosen kinship no legal changes by themselves to the structure of marriage
will remove the stigma of violating the heterosexual normativity required for legitimate
kinship. Only a pluralist culture that accepts the sexual rights of those who deviate

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Marriage as a Violation of Equality

from the heterosexual norm will do this.97 And Ferguson echoes the worry of theorists
such as Ettelbrick and Butler that same-sex marriage may in fact be harmful, by
creat[ing] a new hierarchythe socially acceptable gay marrieds versus the queer
abjected.98 Fergusons conclusion is not that same-sex marriage can never be
compatible with equality, but that there is no necessary correlation between the two,
and engaging in it may indeed lead to a worse situation in some contexts.99 Whether it
helps or harms depends on the legal, economic, social, and citizenship status of those
who are affected by it. Same-sex marriage is thus a morally risky institution and
support for it is always problematic, whether that support is for creating it as a state-
recognized institution or participating in it where it exists.

As Halberstam puts it:

So, to summarize: marriage is an agenda forced upon LGBT groups by the


widespread opposition to gay marriage, and while some gays and lesbians choose
to marry, its not a cause that lies at the heart of the queer community. Marriage
flattens out the varied terrain of queer social life and reduces the differences that
make queers, well, queer, to legal distinctions that can be ironed out by the
strong hand of the law.100

What does this discussion show? Does it show that feminists are hopelessly confused,
because they believe that marriage is both bad and good, both liberatory and
oppressive, both patriarchal and egalitarian? Or does it show that feminism is (p.38) an
incoherent doctrine, a social movement without unity? No. Confusion and disagreement
are inevitable features of the human condition, but there is a way to make sense of all
the feminist arguments on marriage considered here. Both advocates and opponents of
same-sex marriagethose, that is, who are feminist or at least egalitarianshare the
view that traditional, different-sex-only marriage is deeply problematic. Egalitarians
identify the problem as one of inequality; feminists refine it as patriarchy.

We started with an apparent puzzle. Feminists argue that marriage is oppressive to


both its (female) participants and its (lesbian and gay) non-participants. The solution to
this puzzle is that marriage, as an institution, just is oppressive. Quite possibly, if the
institution of marriage exists, it is better to be married than not. Even more plausibly, if
the institution of marriage exists, it is better to be legally permitted to enter it than to
be excluded from it. But the fact that marriage might be the best or only way to
securing a variety of social, economic, and legal goods does not undermine the fact that
the very existence of the institution is oppressive. In other words, it might be that
women are better off if marriage does not exist at all; but if marriage does exist they
are better off married than unmarried. On this account juxtaposing marriages
oppressiveness to women and to lesbians and gays are two sides of the same coin.
Marriage is oppressive to women as compared to a world without marriage. It is
oppressive to deny same-sex marriage only insofar as that institution does exist. The
common thread is that the existence of marriage oppresses, and its removal liberates.

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This analysis fits with some of the examples of oppression just given. The symbolic
pressure on women to marry, and the idea that they are worthless if unmarried, means
that if marriage exists women are better off married than unmarried. This view is
compatible, then, with the idea that it is harmful to be denied access to marriage if the
institution exists for others and confers practical or symbolic benefits. But there is no
necessary harm if the state refuses to recognize marriage at all.101

The natural implication is that equality is best served if marriage ceases to exist as an
institution. Abolishing the institution satisfies all feminist critiques, and is thus a policy
implication around which feminists should unite.

(p.39) 1.4 Civil Union

Some egalitarians declare that, even if traditional marriage is oppressive, there is room
for a reformed, gender-neutral, sexuality-neutral, breaking-with-history marriage
marriage, perhaps, that is named something else. This sort of instinct may explain why
many egalitarians who oppose marriage argue in favour of civil unions as an
alternative.102 The ideal of a civil union is the ideal of marriage untainted by patriarchy
or religion. Civil unions may be an accompaniment to marriage or a replacement for it;
if an accompaniment, they may be available to all (as in France and the Netherlands) or
available to same-sex partners only (as in the UK).

Civil unions have two advantages from the feminist point of view: first, they give all
couples (including same-sex couples) access to the practical benefits of marriage and
second, the idea of a civil partnership breaks away from the patriarchal symbolism of
historically-oppressive marriage. Some feminists also argue that same-sex civil
partnerships will benefit heterosexual women, whether married or not, by undermining
both the hegemony of marriage and the idea that traditional gender roles must prevail
within it. Indeed, one way of breaking away from the patriarchal history of marriage
might be to offer civil partnerships to all couples regardless of sex.103 The status of
civil partnership would thus be doubly egalitarian: it would emphasize equality
between different- and same-sex couples since both could enter into it, and it would
emphasize equality between men and women by breaking from patriarchal history and
by imposing equal terms on each member of the partnership.

Susan Shell argues that liberals should support a dual regime, with marriage reserved
for different-sex couples and civil unions available for same-sex couples. Shell argues
that this is a liberal solution because it goes some way towards satisfying both
traditionalists and libertarians, and thus captures the liberal requirement of
reasonableness, understood as making reasonable accommodation for others moral
commitments. Lesbians and gays should be able to adopt children without prejudice,
and to have access to some of the benefits of (p.40) marriage, but marriage itself
should be retained for different-sex couples and defined as a union that automatically
entails joint parental responsibility for any children generated by the woman.104

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But this policy of distinguishing civil partnership from marriage has various
disadvantages. If the title marriage is reserved for different-sex relationships the
institution of civil partnerships entrenches the gendered nature of marriage, since the
idea that marriage must be between a man and a woman is reinforced, and with it
traditional gender roles and controversial meanings (such as Shells idea that marriage
is defined by procreation). Moreover, the fact that marriage symbolically oppresses
lesbians, gays, and bisexuals remains, since the discriminatory and hierarchical
distinction between different- and same-sex couples is unchanged if only different-sex
couples may marry.

This partly explains why the usual trajectory of legal reform in liberal democracies105 is
as follows:

1. Marriage for different-sex couples only. No recognition of same-sex


partnerships.
2. Marriage for different-sex couples only. Civil unions for same-sex couples only.
3. Marriage extended to same-sex couples.
4. Abolition of civil unions.

The move from stage 1 to stage 2 allows the state to extend legal rights to homosexual
couples without seeming to undermine the traditional and special status of marriage.
After some years of same-sex civil unions, the idea of same-sex marriage gains popular
acceptance, and so the state moves from stage 2 to stage 3. Stages 3 and 4 may occur
simultaneously but are generally close together. Robert Wintemute calls this the
Wintemute law of registered partnership laws: they are always, everywhere in the
world, introduced primarily to address the absence of any legal recognition of same-sex
marriage, while continuing to exclude them from marriage, and not to create an
alternative for all couples.106 He cites South Africa as a notable exception for its
introduction of same-sex marriage and civil partnerships for all at the same time in
2006. Another exception is Greece, which (p.41) is alone in all European countries107
in introducing registered partnerships for different-sex couples only.

In some jurisdictions this use of civil unions is quite explicit. In Ireland, for example,
Article 41.3.1 of the Constitution expressly stipulates The State pledges itself to guard
with special care the institution of Marriage, on which the Family is founded, and to
protect it against attack. Brian Tobin argues that the 2015 Marriage Equality
Referendum that legalized same-sex marriage in Ireland thereby rendered same-sex
civil partnerships unconstitutional, since now they compete with, and undermine,
marriage. Ironically, the more popular civil partnerships are the more they violate the
constitution.108

Questions about the ideal trajectory of reform are interesting but impossible to settle
here.109 It may be that the move to recognize same-sex marriage is an important or
even necessary step on the path to equality, since public debates and legal change on
this issue play a vital role in galvanizing public acceptance of homosexuality and equal

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Marriage as a Violation of Equality
rights. Or, it may be that the move to same-sex marriage is ultimately conservative,
silencing calls for universal civil unions or the marriage-free state. Most likely this will
be different for different societies. I make no recommendations, then, for the precise
path towards the marriage-free state. But I do propose the following ranking of
stopping-places.110 The nearer a society is towards the top of the list, the better.

1. The marriage-free state.


2. Civil unions111 for same-sex and different-sex couples. No state recognition of
marriage.
3. A choice between civil unions and state-recognized marriage for both same-
sex and different-sex couples.
4. Marriage for both same-sex and different-sex couples.
(p.42) 5. Marriage for different-sex couples only; civil partnerships for same-sex
couples only.
6. Marriage for different-sex couples only.

Civil unions are better than marriage, then, but they are not the ideal form of
regulation for two main reasons. The first is that they still entail bundling rights and
duties which, as I argue in Chapter 2, is problematic as it does not fit many
relationships. The second is that, like marriage, civil unions maintain inequality
between partnered and unpartnered people. I explore this inequality in Section 1.5.

1.5 Inequality between Married and Unmarried People


The central egalitarian problem with civil unions is that they do nothing to challenge
the hierarchy that marriage enacts between being partnered and being single. Thus
Celia Kitzinger and Sue Wilkinson argue:

By re-branding as civil partnership a union that is otherwise identical to


opposite-sex civil marriage, civil partnerships achieve the symbolic separation of
same-sex couples from the state of marriage. They grant same-sex couples the
possibility of legal conformity with institutional arrangements which formally
recognize heterosexual intimacy while effectively excluding us from that very
institution. The irony is that this separation is positively valued by many feminists
and LGBT activists because it is the symbolism of marriageand not the civil
institution itselfthat is the target of their critique.112

Lisa Dettmer argues that the gay marriage movement risks exacerbating inequality, not
solving it, because marriage is a system for discriminating against the unmarried and
because rich people are more likely to be married than poor people. She cites a study
by Lisa Duggan which found that the majority of LGBT people in California were not in
stable partnerships. However, white, wealthy gay men are the most partnered
population in California. And, for instance, Black lesbians are the least partnered and

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Marriage as a Violation of Equality

the most likely to have children.113 The implication is that same-sex marriage is an
issue that benefits the already advantaged.

Of course, not every campaign and worthwhile cause is about the very worst off: it is
perfectly reasonable for egalitarians to care about equal rights at all stages of an
income distribution. But same-sex marriage is not something that simply (p.43)

benefits the already-advantaged; it also harms the already-disadvantaged. Indirectly,


campaigns for gay marriage took focus and funding away from campaigns and
programmes that were crucial to poor LGBT people, such as those providing health
care and housing.114 And Franke suggests that the whiteness of the gay marriage
movement helped that cause and did so at the expense of perpetuating:

the negative reputation African Americans suffer when it comes to marriage.


When judges, policy makers, or the media are persuaded that same-sex couples
are sufficiently similar to different-sex couples when it comes to marriage, that
recognition of shared identity is premised upon the specter of a constitutive
outsider that gay couples are not like. And what they are not like is African
Americans (even though, of course, many lesbians and gay men are African
American).A conception of marriage as the pinnacle of mature personhood and
mutual responsibility issaturated with racial and gender stereotypes.115

It is worth noting that the existence of tax and other benefits for married couples in
some jurisdictions does not simply mean that unmarried individuals cannot access a
benefit. If that benefit is a tax break or similar it imposes a measurable cost on those
who do not receive it, since their tax burden will necessarily be higher than it would be
if the benefit did not exist for others. In other words, the move from tax equality to tax
breaks for the married cannot be Pareto-optimal: the benefit for the married can be
achieved only at the expense of the unmarried.116

More directly, marriage itself discriminates against the unmarried. The egalitarian
demand for same-sex marriage is a demand for access to the material and symbolic
privileges of marriage. Achieving same-sex marriage does nothing to undermine, and
may even strengthen, the connection between marriage and benefits that ought to be
universal.117 As Dettmer puts it, While marriage is being rewarded, other ways of
organizing family, relationships and sexual behaviour do not receive these benefits and
are stigmatized and criminalized. In short, people are punished or rewarded depending
on whether or not they marry.118

For Polikoff this point can be put simply: Couples, meaning two people with a
commitment grounded on a sexual affiliation, should not be the only unit that counts as
a family.119 Polikoff therefore argues for an approach that would value (p.44) all
families equally, including those headed by same-sex couples, by single parents, and
those without children. When law makes marriage the dividing line, it harms all
unmarried people, including those with children. The harm is the dividing line.120

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The problem runs deep. It is not just the symbolism of marriage as founded on
heterosexuality that is retained within civil unions, but the practical and symbolic
hierarchy between coupled and uncoupled people of all sexualities. Brake terms this
privileging of the sexually monogamous committed dyad amatonormativity, and
argues that amatonormative discrimination is wrong for the same reasons that other
forms of arbitrary discrimination are wrong:

The similarities between exclusive amorous relationships, friendships, and adult


care networks can involve mutual support, intimacy, and caretaking that provide
emotional fulfilment and are grounds for moral approbation. But not only do
friendships and care networks lack social recognition, their members are
systematically subjected to stereotyping and discrimination.121

Brakes critique of amatonormativity might lead us to be suspicious of framing


egalitarian aims in terms of the family, as Polikoff does: this term, too, might exclude
some care and relationship networks that deserve equal consideration.

Brake invokes a variety of non-traditional relationships to highlight the limits of


amatonormativity, such as urban tribes, best friends, quirkyalones, polyamorists and
revolutionary parents.122 But it is not just alternative lifestyles such as these that are
excluded. In 1971 Mitchell wrote of the range of familiar yet diverse relationship forms
that exist but are obscured by the monolithic institution of marriage:

Couplesof the same or of different sexesliving together or not living together,


long-term unions with or without children, single parentsmale or female
bringing up children, children socialized by conventional rather than biological
parents, extended kin groups, etc.all these could be encompassed in a range of
institutions which match the free invention and variety of men and women.123

The social significance of these alternative relationship forms can be seen by


considering the comparative data on the proportion of children born out of wedlock.
This statistic varies significantly by country. In Columbia, Peru, and Cuba the figures
are 74 per cent, 69 per cent, and 68 per cent; in China, India, (p.45) Saudi Arabia, and
124
Egypt the figure is less than 1 per cent. But in Western liberal democracies there is
more uniformity, with the proportion of children born out of wedlock generally around
the 4050 per cent mark. In 2014 in England and Wales 47.5 per cent of children were
born to mothers who were neither married nor in a civil partnership;125 in 2013 in the
USA 40.6 per cent of children were born to unmarried mothers;126 in Denmark 50 per
cent of children are born out of wedlock.127 So marriage cannot any longer be
described as the normal situation for bringing up children in western liberal
democracies.

So, the diverse care networks to which Mitchell and Brake refer are traditional,
mainstream, and significant in number. In the USA they are also more prominent in
black communities. Franke details how, for African Americans,

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Marriage as a Violation of Equality
the nuclear family has never been the most common way they have arranged
their family lives. Instead, black families have tended to be predominately female-
headed, and rather than relying upon a single wage earner for financial stability
and a single homemaker for domestic stability, they have drawn from a broad
network of aunts, grandmothers, close friends, and others to provide support to
both mothers and children.128

A focus on the married couple as the paradigmatic form of family relationship and the
paradigmatic source of stability is, on this analysis, racist as well as sexist.

Conclusion
In case a reader is unconvinced by the argument to this point, let me offer a final
observation. Perhaps you think that it is possible for marriage to be compatible with
equality; perhaps you think that some suitably-reformed version can avoid the
associations with patriarchy and heterosexism and can avoid (somehow!) being
inappropriately biased towards committed coupledom. In that case you might not think
that the marriage-free state has been shown to be necessary. Or you might not think it
yetthere are many more arguments to come. But even at this early stage I hope to
have shown that there are reasons for an egalitarian to be (p.46) suspicious of
marriage, and that alone ought to provide a prima facie case for the marriage-free
state.

The basic egalitarian case against marriage that this chapter has set out is that it is an
institution founded on patriarchy and heteronormativity, that its reform to include
same-sex couples does not do enough to make it egalitarian since the very idea of
marriage remains rooted in forms of intimacy that are associated with heterosexual and
male privilege, and that even a radically-reformed marriage or civil union inevitably
brings about inequality between those who are partnered and those who are not. All of
these arguments are returned to and strengthened in the book as a whole. Chapter 2
turns to the question of what the state is doing when it engages in the act of
recognizing marriage. What does marriage mean?

Notes:
(1) In the 2012 US elections citizens of Maine, Maryland, Minnesota, and Washington
voted to allow same-sex marriage or civil union. President Obama publicly endorsed
gay marriage during the campaign. Previously several states, such as Hawaii and
California, had voted against same-sex marriage. The Supreme Court Case Obergefell v
Hodges (576 US, 2015) ruled that state bans on same-sex marriage were
unconstitutional.

(2) See, for example, Matt Stopera, 60 Awesome Portraits of Gay Couples Just Married
in New York State Buzzfeed (25 July 2011) at http://www.buzzfeed.com/mjs538/
portraits-of-gay-couples-just-married-in-new-york#.pnZwZWdzz.

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(3) There are many feminist critiques of marriage, some of which reject the institution
wholesale and some of which argue for its reform. These include, but are not limited to,
the following, listed in chronological order of first publication: Mary Wollstonecraft, A
Vindication of the Rights of Woman (London: Constable and Company Ltd, 1996
[1792]); John Stuart Mill, On Liberty and the Subjection of Women (Ware: Wordsworth,
1996 [1859 and 1869]); Emma Goldman, Marriage and Love in her Anarchism and
Other Essays (Createspace, 2011 [1910]); Simone de Beauvoir, The Second Sex
(London: Vintage, 1997 [1949]); Betty Friedan, The Feminine Mystique (London:
Penguin Books, 1963); Sheila Cronan, Marriage in Anne Koedt, Ellen Levine, and Anita
Rapone (eds), Radical Feminism (New York: Times Books, 1973 [1970]); Shulamith
Firestone, The Dialectic of Sex (London: The Womens Press, 1979); Marjorie M. Shultz,
Contractual Ordering of Marriage: A New Model for State Policy in California Law
Review 70(204) (1982); Lenore J. Weitzman, The Marriage Contract: Spouses, Lovers
and the Law (London: Free Press, 1983); Carole Pateman, The Sexual Contract
(Cambridge: Polity Press, 1988); Paula L. Ettelbrick, Since When is Marriage a Path to
Liberation? in Mark Blasius and Shane Phelan (eds), We Are Everywhere: A Historical
Sourcebook of Gay and Lesbian Politics (London: Routledge, 1997 [1989]); Susan
Moller Okin, Justice, Gender, and the Family (New York: Basic Books, 1989); Martha
Albertson Fineman, The Neutered Mother, The Sexual Family, and Other Twentieth
Century Tragedies (London: Routledge, 1995); Claudia Card, Against Marriage and
Motherhood Hypatia 11(3) (1996); Jane Lewis, The End of Marriage? Individualism and
Intimate Relations (Cheltenham: Edward Elgar, 2001); Janet C. Gornick, Reconcilable
Differences in The American Prospect Online (25 March 2002) at http://prospect.org/
article/reconcilable-differences; Petra Boynton, Abiding by The Rules: Instructing
Women in Relationships Feminism & Psychology 13(2) (2003); Virginia Braun, Thanks
to my MotherA Personal Commentary on Heterosexual Marriage in Feminism &
Psychology 13(4) (2003); Sarah-Jane Finlay and Victoria Clarke, A Marriage of
Inconvenience? Feminist Perspectives on Marriage in Feminism & Psychology 13(4)
(2003); Merran Toerien and Andrew Williams, In Knots: Dilemmas of a Feminist Couple
Contemplating Marriage in Feminism & Psychology 13(1) (2003) Maria Bevacqua,
Feminist Theory and the Question of Lesbian and Gay Marriage in Feminism &
Psychology 14(1) (2004); Anne Kingston, The Meaning of Wife (London: Piatkus, 2004);
Celia Kitzinger and Sue Wilkinson, The Re-branding of Marriage: Why We Got Married
Instead of Registering A Civil Partnership in Feminism & Psychology 14(1) (2004);
Martha Albertson Fineman, The Meaning of Marriage in Anita Bernstein (ed.),
Marriage Proposals: Questioning a Legal Status (New York: New York University Press,
2006); Nancy D. Polikoff, Beyond (Straight and Gay) Marriage: Valuing All Families
Under the Law (Beacon Press, 2008); Brook J. Sadler, Re-Thinking Civil Unions and
Same-Sex Marriage in The Monist 91(3/4) (2008); Tamara Metz, Untying the Knot:
Marriage, the State, and the Case for their Divorce (Princeton: Princeton University
Press, 2010); Elizabeth Brake, Minimizing Marriage: Marriage, Morality, and the Law
(Oxford: Oxford University Press, 2012).

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(4) Braun, Thanks to my Mother p. 421. See also Finlay and Clarke, A Marriage of
Inconvenience? pp. 41718.

(5) Toerien and Williams, In Knots p. 435.

(6) Jesus College, St Radegund at http://www.jesus.cam.ac.uk/about-jesus-college/


history/pen-portraits/st-radegund/https://www.jesus.cam.ac.uk/college/about-us/history/
people-note/st-radegund.

(7) Mill, The Subjection of Women p. 121.

(8) Mill, The Subjection of Women p. 146.

(9) See St Andrews University, Women and the Law in Victorian England at http://
www.st-andrews.ac.uk/~bp10/pvm/en3040/women.shtml. I am using the word rape
here in a non-legal sense, since legally it was impossible for married women to be
raped by their husbands prior to 1991. An act of forced sex between a husband and
wife did not, legally, count as rape.

(10) Goldman, Marriage and Love p. 89.

(11) de Beauvoir, The Second Sex p. 447.

(12) de Beauvoir, The Second Sex p. 447.

(13) de Beauvoir, The Second Sex p. 451.

(14) de Beauvoir, The Second Sex pp. 4601.

(15) Friedan, The Feminine Mystique p. 15.

(16) Friedan, The Feminine Mystique p. 18.

(17) Friedan, The Feminine Mystique p. 43.

(18) Friedan, The Feminine Mystique p. 344.

(19) Cronan, Marriage p. 218.

(20) Cronan, Marriage p. 217.

(21) Cronan, Marriage p. 217.

(22) Cronan, Marriage pp. 21718.

(23) Juliet Mitchell, Womans Estate (London: Verso, 2015 [1971]) p. 151.

(24) Mitchell, Womans Estate p. 151.

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(25) Kate Millett, Sexual Politics (London: Abacus, 1972) p. 33.

(26) Firestone, The Dialectic of Sex p. 121.

(27) Firestone, The Dialectic of Sex p. 122.

(28) Sally Swain, The Great Housewives of Art (New York: HarperCollins, 1988).

(29) See, for example, Weitzman, The Marriage Contract; Shultz, Contractual Ordering
of Marriage; Elizabeth A. Kingdom, Cohabitation Contracts: A Socialist-Feminist Issue
in Journal of Law and Society 15(1) (1988); Fineman, The Neutered Mother; Fineman,
The Autonomy Myth: A Theory of Dependency (New York: New Press, 2005); Fineman,
The Meaning of Marriage; Fineman, Why Marriage? in Virginia Journal of Social
Policy and the Law 9(1) (2001).

(30) Fineman, Why Marriage? p. 261.

(31) Okin, Justice, Gender, and the Family pp. 142; see also Kingston, The Meaning of
Wife.

(32) See also Gornick, Reconcilable Differences.

(33) Pepper Schwartz, Love between Equals: How Peer Marriage Really Works (New
York: The Free Press, 1994); Arlie Russell Hochschild and Anne Machung, The Second
Shift: Working Parents and the Revolution at Home (London: Piatkus, 1990).

(34) Kitzinger and Wilkinson adopt this optimistic view in The Re-branding of Marriage
p. 135.

(35) Card, Against Marriage and Motherhood p. 12.

(36) Kingston, The Meaning of Wife pp. 15861. See also Lewis, The End of Marriage.

(37) Brake, Minimizing Marriage p. 114.

(38) Sara Arber and Jay Ginn, The Mirage of Gender Equality: Occupational Success in
the Labour Market and within Marriage in The British Journal of Sociology 46(1)
(1995) p. 26.

(39) Arber and Ginn, The Mirage of Gender Equality p. 21.

(40) Many feminists argue that sexism and heterosexism are fundamentally connected.
See, for example Radicalesbians, The Woman-Identified Woman [1970] in Blasius and
Phelan (eds), We Are Everywhere; Judith Butler, Gender Trouble (London: Routledge,
1999); Susan Moller Okin, Sexual Orientation, Gender, and Families: Dichotomizing
Differences in Hypatia 11(1) (1996).

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(41) Sanjiv Gupta, The Effects of Marital Status Transitions on Mens Housework
Performance in Journal of Marriage and the Family 61 p. 709.

(42) Gupta, The Effects of Marital Status Transitions p. 710.

(43) Scott J. South and Glenna Spitze, Housework in Marital and Nonmarital
Households in American Sociological Review 59(3) (1994) p. 327.

(44) South and Spitze, Housework in Marital and Nonmarital Households p. 344.

(45) Michael P. Johnson and Kathleen J. Ferraro, Research on Domestic Violence in the
1990s: Making Distinctions in Journal of Marriage and the Family 62(4) (2000) p. 949.

(46) Johnson and Ferraro, Research on Domestic Violence p. 949.

(47) Johnson and Ferraro, Research on Domestic Violence p. 952.

(48) Joan Williams, Unbending Gender: Why Family and Work Conflict and What To Do
About It (Oxford: Oxford University Press, 2000).

(49) Pierre Bourdieu, Masculine Domination (Cambridge: Polity Press, 2001); Pierre
Bourdieu and Loc Wacquant, An Invitation to Reflexive Sociology (Cambridge: Polity
Press, 1992).

(50) Anna Sandfield and Carol Percy, Accounting for Single Status: Heterosexism and
Ageism in Heterosexual Womens Talk about Marriage in Feminism & Psychology 13(4)
(2003); Jill Reynolds and Margaret Wetherell, The Discursive Climate of Singleness:
The Consequences for Womens Negotiation of a Single Identity in Feminism &
Psychology 13(4) (2003).

(51) Ellen Fein and Sherrie Schneider, The Rules: Time Tested Secrets for Capturing the
Heart of Mr Right (London: Thorlens, 1995) p. 120. For a feminist who is not too
chastised to criticize The Rules, see Boynton, Abiding by The Rules.

(52) J. Jack Halberstam, Gaga Feminism: Sex, Gender, and the End of Normal (Boston,
MA: Beacon Press, 2012) p. 115.

(53) See Pateman, The Sexual Contract; Card, Against Marriage and Motherhood;
Toerien and Williams, In Knots p. 434; Sheila Jeffreys, The Need to Abolish Marriage
in Feminism & Psychology 14(2) (2004); Richard H. Thaler and Cass R. Sunstein,
Nudge: Improving Decisions about Health, Wealth and Happiness (New Haven, CT: Yale
University Press, 2008) p. 219.

(54) Patemans argument strongly implies that no reform could render marriage non-
patriarchal since the very idea of contracting parties is deeply embedded in
insurmountably patriarchal concepts. See Pateman, The Sexual Contract pp. 1845.

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(55) See TUC, The Motherhood Pay Penalty (March 2016) at https://www.tuc.org.uk/
sites/default/files/MotherhoodPayPenalty.pdf. The report concludes that cultural
factorsnegative views of womens commitment to work after having children and
positive views of fathers in the workplace, probably associated with the traditional
male breadwinner roleare at play (p. 5).

(56) Metz, Untying the Knot p. 11.

(57) For further discussion see http://www.pink-triangle.org.

(58) Toerien and Williams, In Knots p. 434.

(59) Stoddard, Why Gay People Should Seek the Right to Marry in Blasius and Phelan
(eds), We Are Everywhere p. 754.

(60) Bevacqua, Feminist Theory p. 37.

(61) Stoddard, Why Gay People Should Seek the Right to Marry p. 756.

(62) Stoddard, Why Gay People Should Seek the Right to Marry p. 756.

(63) Stoddard, Why Gay People Should Seek the Right to Marry p. 757.

(64) See Brake, Minimizing Marriage for an overview of the privileges of marriage in
the US context.

(65) Margaret Morganroth Gullette, The New Case for Marriage in The American
Prospect Online (5 March 2004), http://www.prospect.org.

(66) Joan Callahan, Same-Sex Marriage: Why It MattersAt Least for Now in Hypatia
24(1) (2009) p. 73.

(67) Brake, Minimizing Marriage pp. 11, 1259; Katherine Franke, Wedlocked: The
Perils of Marriage EqualityHow African Americans and Gays Mistakenly Thought the
Right to Marry Would Set Them Free (New York: New York University Press, 2015).

(68) Justice Warren, Race and the Right to Marry in Andrew Sullivan (ed.) Same-Sex
Marriage Pro and Con: A Reader (New York: Vintage, 2004) p. 89.

(69) Obergefell v Hodges (2015) at http://www.supremecourt.gov/opinions/14pdf/


14-556_3204.pdf p. 3.

(70) European Convention on Human Rights at http://www.echr.coe.int/Documents/


Convention_ENG.pdf.

(71) See, for example, Australian Marriage Equality (http://


www.australianmarriageequality.org); Human Rights Campaign (http://www.hrc.org/

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campaigns/marriage-center); Irish Marriage Equality (www.marriagequality.ie); LGBTQ
Nation (http://www.lgbtqnation.com/tag/gay-marriage/); Marriage Equality USA (http://
www.marriageequality.org); Advocate (http://www.advocate.com/marriage-equality).

(72) Alex Rajczi, A Populist Argument for Legalizing Same-Sex Marriage in The Monist
91(3/4) (2008) p. 475.

(73) Rajczi, A Populist Argument p. 498.

(74) A sustained discussion of a version of the basic claim is found in Ralph Wedgwood,
The Fundamental Argument for Same-Sex Marriage in The Journal of Political
Philosophy 7(3) (1999). See also Benjamin A. Gorman, Brief Refutations of Some
Common Arguments Against Same-Sex Marriage in American Philosophical
Association Newsletter on Philosophy and Lesbian, Gay, Bisexual, and Transgender
Issues 4(1) (2004).

(75) Richard McDonough, Is Same Sex Marriage an Equal Rights Issue? in Public
Affairs Quarterly 19(1) (2005) p. 53.

(76) Wedgwood, The Fundamental Case for Same-Sex Marriage p. 240.

(77) Reginald Williams, Same Sex Marriage and Equality in Ethical Theory and Moral
Practice 14(5) (2011).

(78) Andrew Lister, Public Reason and Political Community (London: Bloomsbury, 2013)
p. 137.

(79) William Bennett, Leave Marriage Alone in Sullivan (ed.), Same-Sex Marriage p.
275. Bennett is wrong, of course, if he means to suggest that bisexuals cannot be
monogamous. For other arguments that same-sex marriage is a slippery slope to the
recognition of morally-suspect sexualities see John Finnis, Marriage: A Basic and
Exigent Good in The Monist 91(3/4) (2008); Hadley Arkes, The Role of Nature in
Sullivan (ed.), Same-Sex Marriage; Charles Krauthammer, When John and Jim Say I
Do in Sullivan (ed.), Same-Sex Marriage; Patrick Lee, Marriage, Procreation, and
Same-Sex Unions in The Monist 91(3/4) (2008). Polygamy and incest do not exhaust the
morally-suspect sexualities that are used in this argument but they are the most
commonly-used. Some versions of the argument include bestiality.

(80) Jonathan Rauch, Marrying Somebody in Sullivan (ed.), Same-Sex Marriage p. 286.

(81) For the argument that a line can be drawn isolating same-sex marriage from
morally-suspect or harmful sexualities, such that there is no slippery slope, see
Williams, Same Sex Marriage and Equality; Andrew Sullivan, Threes A Crowd in
Sullivan (ed.), Same-Sex Marriage; Rauch, Marrying Somebody; John Corvino,
Homosexuality and the PIB argument in Ethics 115(3) (2005); Andrew F. March, What
Lies Beyond Same-Sex Marriage? Marriage, Reproductive Freedom and Future Persons

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in Liberal Public Justification in Journal of Applied Philosophy 27(1) (2010); Stephen
Macedo, Just Married: Same-Sex Couples, Monogamy, and the Future of Marriage
(Princeton, NJ: Princeton University Press, 2015).

(82) Corvino, Homosexuality and the PIB Argument p. 533.

(83) Ronald C. Den Otter, In Defense of Plural Marriage (Cambridge: Cambridge


University Press, 2015). For other examples of the argument that same-sex marriage
does lead to the recognition of some other sexualities, such as polygamy or polyamory,
but that this is not to be feared morally see Dennis Altman, Sexual Freedom and the
End of Romance in Sullivan (ed.), Same-Sex Marriage; Cheshire Calhoun, Whos Afraid
of Polygamous Marriage? Lessons for Same-Sex Marriage Advocacy from the History of
Polygamy in San Diego Law Review 42 (2005); Andrew F. March, Is there a Right to
Polygamy? Marriage, Equality and Subsidizing Families in Liberal Public Justification
in Journal of Moral Philosophy 8(2) (2011); Alex Rajczi, A Populist Argument for
Legalizing Same-Sex Marriage; Martha C. Nussbaum, From Disgust to Humanity:
Sexual Orientation and Constitutional Law (Oxford: Oxford University Press, 2010);
Sonu Bedi, Beyond Race, Sex, and Sexual Orientation: Legal Equality without Identity
(Cambridge: Cambridge University Press, 2013).

(84) This point is emphasized in Wedgwood, The Fundamental Case for Same-Sex
Marriage.

(85) Cheshire Calhoun, Feminism, the Family, and the Politics of the Closet: Lesbian and
Gay Displacement (Oxford: Oxford University Press, 2000).

(86) Ettelbrick, Since When is Marriage a Path to Liberation? p. 758.

(87) Nancy D. Polikoff, We Will Get What We Ask For: Why Legalizing Gay and Lesbian
Marriage Will Not Dismantle the Legal Structure of Gender in Every Marriage in
Virginia Law Review 79(7) (1993) p. 1541.

(88) Franke, Wedlocked p. 113.

(89) Franke, Wedlocked p. 108.

(90) Franke, Wedlocked p. 203.

(91) Franke, Wedlocked p. 223.

(92) Card, Against Marriage and Motherhood p. 6.

(93) Judith Butler, Is kinship always already heterosexual? in differences: A Journal of


Feminist Cultural Studies 13(1) (2002) p. 16.

(94) Butler, Is kinship always already heterosexual? p. 21.

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(95) Butler, Is kinship always already heterosexual? p. 26. See also Samuel A.
Chambers and Terrell Carver, Judith Butler and Political Theory: Troubling Politics
(London: Routledge 2008).

(96) Jeffreys, The Need to Abolish Marriage p. 330.

(97) Ann Ferguson, Gay Marriage: An American and Feminist Dilemma in Hypatia
22(1) (2007) p. 43.

(98) Ferguson, Gay Marriage p. 48.

(99) Ferguson, Gay Marriage p. 51.

(100) Halberstam, Gaga Feminism p. 114.

(101) The European Declaration of Human Rights protects the right to marry, a right
which has also been seen as fundamental in US constitutional law. Insofar as the right
to marry is a genuine right, it is best understood as the right to form committed
partnerships, and to enjoy protection from undue legal interference in those
relationships, rather than as a right to have ones marriage recognized as a special and
privileged legal status.

(102) See, for example, March, What Lies Beyond Same-Sex Marriage?; Sadler, Re-
thinking Civil Unions; Thaler and Sunstein, Nudge; Polikoff, Beyond (Straight and Gay)
Marriage; Lawrence Torcello, Is State Endorsement of Any Marriage Justifiable? in
Public Affairs Quarterly 22(1) (2008).

(103) This solution is advocated by the Equal Love Campaign, which describes itself as
The legal bid to overturn the twin bans on same-sex civil marriages and different-sex
civil partnerships in the United Kingdom (http://equallove.org.uk) and the Equal Civil
Partnerships Campaign, which includes a legal challenge to the UK Civil Partnerships
Act 2004 by Rebecca Steinfeld and Charles Keidan (http://
equalcivilpartnerships.org.uk).

(104) Susan M. Shell, The liberal case against gay marriage in The Public Interest
(Summer 2004) p. 22.

(105) Countries that have progressed through all four stages include Denmark, Iceland,
Norway, Sweden, Finland, Slovenia, Ireland, and parts of the USA (Connecticut,
Delaware, New Hampshire, Rhode Island, Vermont, Washington State). See Robert
Wintemute, The Future of Civil Partnerships in England and Wales presented at The
Future of Registered Partnerships Durham-Cambridge Conference (University of
Cambridge, 1011 July 2015).

(106) Wintemute, The Future of Civil Partnerships.

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(107) Dafni Lima, Draft National Report: Greece presented at The Future of Registered
Partnerships.

(108) Brian Tobin, The Future of Registered Partnerships in the Republic of Ireland
presented at The Future of Registered Partnerships.

(109) For discussion of this issue see William K. Eskridge, Jr, Equality Practice: Civil
Unions and the Future of Gay Rights (New York: Routledge, 2002).

(110) I am unsure where to place the status quo in the UK: marriage for same-sex and
opposite-sex couples; civil unions for same-sex couples only. It might go at position 3.5,
because it improves on option 4 by adding the valuable choice of civil union for same-
sex couples; or it might go at position 4.5, because it detracts from position 4 by
deviating from equality.

(111) In this ranking civil unions is short for civil unions or some other well-designed
replacement for marriage, such as those statuses based on caregiving and proposed by
feminists. I discuss examples of these alternative statuses throughout the book.

(112) Kitzinger and Wilkinson, The Re-branding of Marriage p. 144.

(113) Lisa Dettmer (quoting Lisa Duggan), Beyond Gay Marriage: the assimilation of
Queers into neoliberal culture at https://www.academia.edu/11879158/
Beyond_Gay_Marriage_the_assimilation_of_Queers_into_neoliberal_culture p. 28.

(114) Dettmer, Beyond Gay Marriage pp. 1920.

(115) Franke, Wedlocked pp. 2046.

(116) David M. Estlund, Commentary on Parts I and II in David M. Estlund and Martha
C. Nussbaum (eds), Sex, Preference, and Family: Essays on Law and Nature (Oxford:
Oxford University Press, 1997) p. 163.

(117) Card makes this point in Against Marriage and Motherhood.

(118) Dettmer, Beyond Gay Marriage p. 6.

(119) Polikoff, Beyond (Straight and Gay) Marriage p. 4.

(120) Polikoff, Beyond (Straight and Gay) Marriage p. 123.

(121) Brake, Minimizing Marriage p. 97.

(122) Brake, Minimizing Marriage, p. v.

(123) Mitchell, Womens Estate p. 151.

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(124) Social Trends Institute, The Sustainable Demographic Dividend at http://


www.sustaindemographicdividend.org. Other countries for which data are provided
here include South Korea, Taiwan, Japan, Indonesia at 15%; Italy at 18%; Germany
and Australia at 32% and 33%; New Zealand at 47% and Sweden at 55%.

(125) Office of National Statistics, Births in England and Wales, 2014 at http://
www.ons.gov.uk.

(126) Centers for Disease Control and Prevention at http://www.cdc.gov/nchs/fastats/


unmarried-childbearing.htm.

(127) Ingrid Lund-Andersen, Registered Partnerships in Denmark presented at The


Future of Registered Partnerships.

(128) Franke, Wedlocked p. 90.

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